BRADY tl. THE BENDO.
439
as was in their powel',her signals of distress seemed to have beeninteJ:'. preted as at! invi,tation to everybody to help himself to whatevet'hecould lay his hands upon belonging to the cargo. Indeed there is a medieval flavor about the colldul:lt of the men engaged in this wrecking expedition, which intuitively recalls to the student of maritime law the customs of the Gauls, as stated by Judge PETERS in his observations upon the laws of Oleron, who were in the habit of seizing upon the cargoes' of vessels UP0J;l their coasts, and confiscating them to the use of the lords ,of th'eIlQil,and of either selling their crews into slavery, or sacrificing themlirSi an offering .to their gods. Happily, the crew of the Albany ,preBe,ryed from, this fate, as she succeeded in extricating, herself to a port of safety., , ' , i, d,t irqm There must be a decree for the libelants for the amount of their: and '8 cross-libelants for the value of theproperty,taken from· ,the tug and the first two lighters, less the amounts receivedih se1Jtlementandpayment for the same, and a final decree for the party ,in Whose favor 'a,balance is found to be due. The C4Se', will be teferre<:ttt> this amount, upon the 'as may be offered; within 20 days from:tbis
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Court, E. D.VirginUJ. December,20, 1890.) . ./
cOLLIBTOW-8:rEUlE;as--Lostl OP B:rEER4GE W4Y.
Where a steam-ship, while in relations to a stelJoPl·tug and her tow dElscrl.\Hld by J'\1.1esof'navigation 19 and 22, in stopping for the purpose of cqming to anchor,loses her steerage way, and disables herself from complying with tbose rules by keeping out. of, t.hll tug's way, and a collision ensues, held, that lhe steam-ship was in faUlt, and must pay the damages. (Bi/tuibU8 blI the Court.)
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In Admiralty. Libel for damages from Rarma'7UJ(jn &: Heath, for libelant, WhitehU1'8t &: Rughe.s, for the Sampson· .Sharp &: Rughe.s,' fot' the Bendo. HUGlIES,
'Brady, that was sunk in the entrance to Hampton Roads, between Old Point Comfort and the Rip Raps, in contact with the English steamer Bendo, at about half past 9 on the night Of September 1, 1890, which was a clear, moonlight night. No veSsel was anchoted in this channel on the occasion except the steamer Waddy,whiclllayabout a quarter very, near the' The'ich,anne1 'plile,off' froqi Old and ita depth pi fuU,6Q A strong .; · · · . ' t. : ·· -..II ·.,
J. The libelant was owner and master of the barge Kate
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440
FEDERAL REPORTER ,vol.
44.
tide was coming into the Roads at the time. The barge Kate Brady was in tow of the steam-tug Sampson, upon a hawser 80 fathoms in length, and was lashed abreast of two other barges, she being on the port side. The tug and barges were coming in from across Chesapeake bay, en route for Norfolk. When the Sampson and her tow were about half-way hetween Thimble and Old Point lights, the steamer Bendo, which was coming Baltimore bound for Norfolk, rounded Thimble light, and followed .the Sampson on a course some distance southward, on the Sampson's port side, until the steamer and tug were nearly abreast of each other off Old Point light. The collision occurred while the Benda was making ready and endeavoring to anchor. Capt. Masingo, master of the tug, gives the following account of what transpired in respect to the collision: "I was in tbe pilot-house and on deck at different times; was on watch at the time...After we passed the 'fhi,mble light coming up the Roads, we were . steering for Pig P.oint UglJt S. W.,l W., and we discovered a steamer com- ' fng'Up' a.stern of us, and running nearly parallel, as near as I could jUdge. When wE! got up abreast of Old or ne'u about, the stearneI' had drawed up abeam of us nearly, and I ordered my man to port his wheel, and keepS. W. W. half a point, so as not to crowd him too much. That order was obeyed. I went into the pilot-house again, and a few moments afterwards, when nearly abrl'ast of Old Point wharf, I looked out of the door and saw the IIteamer approaching us at about an angle of thirty or forty degrees, and commenced to sing out something. I went to the pilot-house. and he said, ·Keep clear of me.' I ordered the wheel a-port again, and toll! the man to keep her a-port; and she [meaning the tug] W,&8 heading directly for the steamer Waddy, [or Wally,] which was lying to anchor on our starboard side; and he did so, and I told him to steady. I suppose he was going W. by S., 1 S., as near as I can come to it. He [meaning the tug] veered off. and continued that until he got just close enough not to rUll into the Waddy, when the Hendo cleared my stern, so as he would not hit me. I stopped my engUie.and .l"emained so until after the collision. We passed I suppose within thirty or forty feet, possibly forty, from the Waddy, and after the colliSIOn occurl:ed I had my wheel to starboard, and came ahead, so as to pull the tow clear of the Waddy. The tow then passed very close to the Waddy. I understood the one who sang out on the Bendo to say that his steering gear was out of order. When they sang out to me to keep clear, I said, · Why can't you wait until I get by?' and they answered that their steel'ing gear was out of order, or something to that effect; that was what I understood." Testimony of the Benda's witnesses shows that what was really said was that the Benda had been getting ready to anchor, and had no steerage way. Capt. Masingo further says that the Waddy was lying not .over a quarter mile from Old Point wharf; that he was abrea::;t of her when the collision of Benda and barge occurred; and that at the time the Sampson was not over 30 or 40 feet from the Waddy. George Young, wheelsman on the Sampson, testifies: "We were about entering Hampton Roads off Old Point light, and I saw a steamer come. up on our port side. The captain sang out about the same time, and asked if it was imEnglish tramp, and I said,' ¥ps,' Resaid, ·Give way to bim,' and I gave way, until he told me to steady her. We were both going in allout one direction at that time. We lost sight of bim then, and a
BRADY V. THE BENDO.
441
few minutes afterwards I saw him again, and tbis time tbe('sptain said. ·Give way, or port the wheel,' and I ported again. I was then heading for another steamer, anchored on our starboard bow. The captain opened the door and said, · Look out for that other steamer.' Of course I could not see what occurred astern. We passed within about forty feet of the vessel on our starboard bow. 11<' II< * The last I saw of the Bendo she was almost at right angles, going ahead. ... * * There was no order to starboard the belm before the collision. That order was after the collision. We bad stopped the Sampson before that order." Higgins, the engineer of the Sampson, testifies: "The engine room is flush with the deck. I was on deck on the port side. 'rhe steamer came until her bow was about our fore-rigging; then she appal'· like thirty ently took a sheet', and closed in on us, and got within or forty yards. I could hear the men hallooing, but could nut tell what they were saying. I am a little deaf. I ran into the engine room to stand by the engine, as I saw there would be a collision. I thought she would hit the Sampson; her bow was coming towards the8ampson. Our boat sheerl'd off a little, and then, on the starboard bow, there was another steamer anchored. There was a strong flood-tide. I did not take account of the distance, but we were not far from the anchored ship, and did not have room to get off on the other side. Directly after I got in the engine room, our ship came close by the [anchored] steamer's bow, and I slowed down and stopped the engine." The masters of two of the barges were examined on behalf of the Sampson. They testify that the Sampson moved off to starboard when the Bendo hailed, and kept that course up to the moment of collision. They say that the Benda was moving forward, and ran into the barge. No witness, of the seven or eight examined in behalf of the Benda, has given, in narrative form, an account of the collision, and the circumunder which it occurred. All of the testimony is in the form of question and answer; most of the interrogatories elaborate, most of the answers brief. This defect in testimony puts the court at the disadvantage of having to sift out, from very short statements of witnesses, in voluminous depositions, the theory of the litigant's case. I will state their substance as well as I can: The witnesses for the Bendo all concur in saying that the Bendo moved up, 011 a course nearly parallel with that of the Sampson, from Thimble light till nearly abreast of Old Point light, at a distance, one course from the other, of 140 to 150 fathoms. They say that then the Benda stopped her engine for coming to anchor, and reversed her engine to back. They say that in a few minutes thereafter the Benda began to move backwards, and was so moving when the collision occurred. They say that, before the time the Bendo stopped her engine to anchor, the Sampson had changed her course more southwardly, which had brought the steamer and tug within 40 or 50 yards of each other when the Bendo stopped to anchor. They say that the Sampson continued that course, and approached so near the Bendo as to cause the latter's men to cry outto keep off, but that the warning had no effect; so that, although the Sampson herself cleared the Bendo, yet the barges in tow of her weredrawn into collision. in which the barge on the port side was sunk. They say that, when the Bendo slackened up 'toanchor,',she had got up rather more than abreast of the, Sampson,
442
I'JIlDER.\L REPQltTER,
vol. 44.
wMeh\Vl1Stwo or three points abaft:tbe Bendo.'sbeam.·· They say,in proof thllt the Bendo was moving badkwards at the time of collision, that tnebackwater from her propeJ,ler'had reached to mid-ships of the Bendo. say that the barge tan into the Bendo. They say the (lOJ,lrse of the Sampsoll for a few before the. collision was in the form of a curve, which took her around on the port side of the' Benda, and that by taking thiscou1'8e she drew the barges against the bow of the Bendo, and brought on the collision. Such is the substance of the testimony of all the Bendo's witnesses. In respect. to a few controverted particulars, I will CQPY some special testimony. Capt. AmIot, muster of.tbe Bendo, says, in answer to interrogatories which I omit: " At ten or twelve minutes before the collision. the Sampson was three poin'ts'onourtltarboardquarter, and 160 fathoms abaft our starboard beam. We got up,abreast of the tug, but did not ,pass her. The pilot hailed the tug to keep off, as she was abOut to coml:' ,to anchor. In the ten minutes,and shortly before the collision, the' tug was .' approaching· the· steamer, and she continued to come closer, which caused our pilot to hidl the tug to keep off·. as we were about to come to anchor. She was then thirty or forty fathoms off. The tug took nO notice of our request, and proceeded to cross our bows. Thetow line was made curvilinear bytbat movement. The Bendo did not at any tlmewbilein Ha.mpton Roads go ahead of the Sampson, or at any time passber ,bo:"'''''' , Edw.ard' :Ramsey, the second officer of the Bendo, in charge of the after-deck,testifies that ten or twelve minutes befol'ethe collision the Hendo, having stopped her engine, signaled to the, tug to keep off; that he heard both master and pilot call to. keep clear, as .they . were coming to anchor,arid had ,lost ,steerage way; "could not say whetber we were passing, the Sampson or 110t." , Such is the tenor, and I think the substance., of all the testimony of.. fered for the Bendo. I now to decide upon testhlJony as conflictthat daming as w8severoffered ina collision case. All ages are{J'Ue thelibelant,and must be paid by the owners either oUhe Bendoor Sampson. As the channel in: which the tug and steamer were moving ',wa!! a mile wide,and as the steamer Wil.ddyw8s anchored within Ii quarter of a mile' of; its n(j)rthern or Old Point side, leaving threeof clear channel on the southern side, it was natural ,quarters that the'Sampson, incumbered with a tow,.at the end of a long hawser, moving in advance of the Bendo. sliould make Jor the wider part of the channel!;, leav.ing the anchored steamer ,to starboard. The tug had a right to ohoose this side of the channel.. Theres'Ult showed that the tug took no' ,more than wQsnecessal-Y0{ this, part of the channel, and did actUally pass' within 50: <feet of the Waddy. The barges iIHow of her Waddy: by only four or five feet. Here is an undis_ puted: ffict,!:thata steam...t ug coming from1.'himble ligbt to Old Point, in a channel clear for three-quarters of a mile, took :her:conrse through solittle of this channel on her port side .fur: three-quartersof a ,mile that :she' passed: within 50 feetofthe anchored steamer on her starboard, and her tow ;within: five feet. . From tbecourse. thus pursued,. by :the son'ftom.Thinihle.light into the Roads, the testimony of the, tugshow8
BRADY'll·. THE BENDO.
that sbe changed 01+1y so Jar, at theeall of theJ3endo, as to port :
helm, and to bring herself 'Dearer .totheWaddy than;Rhe had pass. Notwithstanding theslrenupusins.iillence:of thewitne$ses ,of ;the Bendothat the tug must.have starbeatded.herhelm, and tbereby brought l"m herseU to port of .her original course, and down upon constrained to believe that the Sampson did not change hercollrs.e.to port, or change it at all, except,at the request of the Bendo,by off to starboard under a ported helm. 1 am constrained to believe that the Bendo having imprudently chosen the time for anchoring, having lost her steerage way, and her bow begun to swing to starbOl1fd l those on board of her, being strangers in these waters, and it beingin the night-time, were unable to form any correct judgmentof courses or points of the compass, and were mistaken in thinking that the tug was going to port, when she was really veering to starboard. Nor can .r bring myself to think that the Bendo had got to backwa.rd" That her propeller was backing vigorously. I have no dun bt, and I have no right to doubt that the backwater from it had run as far along the B.endoas amidships; but I do not accept this latter fact as proof that the steamer had yet obtained a backward movement. It was a very strong flood-tide, and such a tide could it.<lelf have carried backwater as far as mid-ships even if the ship had been moving forward at a slow speed, and even though the ship were, like the Bendo, 345 feet in length, with 43 feet of beam. At any rate the backwater was not proof of backward movement, and we have the testimony of the men on the barges positively declaring that the Bendo was still moving forward when she ran into the Kate Brady. What, then, is the state of th!" case in respect to tbe laws of navigation? Rule19 requires any steam-vessel in risk of collision with anotber which she has on her own starboard side, to keep out of that other's way. Rule 22 requires every vessel overtaking another to keep out of the other's way, and rule 23 requires the vessel which is not required by rule 19 and 22 to keep out of another1s way to keep on in her own course. Whether considered as a having the Sampvessel approaching the Sampson, or as son, another steam-vessel, on her side, it was the duty of the Bendoto keep out of the Sampson's way. Instead of doing so, the Bend 0 chose a time for coming to anchor unfavorable to doing so consistently with her duty of keeping out of the- Sampson's way. In coming to anchor, she lost her steerage way just when she absolutely nf'eded itfor the purpose of keeping out of· the tug's way. She had a right to anchor wherever she might have chosen to do so in that spacious stead; but in coming to anchor it was her duty to so contrive as to keep out of the way of the vessel on her starboard side. which she had been overtaking. In failing to do so, and iu giving up her power of steerage way just when it was essential to her performance of imperative duty, she committed the fault which rendered the collision unavoidable. She confessed her fault when she sang out to the Sampson that it must keep off, and that she had lost her steerage way. That confession is as
444
FEDERAL REPORTER,
undeniable as it is fatal to her case.; In losing her steerage way at that Dioment, of all others,she was fatally at fault. It is claimed in behalf of the Bendo that, although she was the overtaking vessel before she reached the vicinity of the collision, yet for a little while anterior she was abreast of the Sampson, and even more than abreast, and had the Sampson two or th,ree points abaft her beam. Yet her captain expressly says that he had not passed the Sampson. But whether he had passed or not is immaterial in the present case. She had come up into the vicinity of the collision as the overtaking vessel, and could not then and there throw off the responsibility of that character by getting slightly ahead of the other ship. If a dog in chasing an ox runs forward and tries to seize the ox's nose, he does not thereby convert the ox into the chasing animal. If the Bendo had followed up the barge, and, instead of running into her stem; pushed ahead; turned, and made lor the bow of the barge, sinking her, it would be converting a great and wise rule of navigation into a deception and snare to hold that the barge was the vessel. Besides all this, the Bendo had the Sampson on her starboard side throughout the ad venture, and was bound to keep out of the way of both tug and tow. As to the point made in behalf of the Bendo, that the tug had no lookout, and that it was through this fault that the collision occurred, it is to be answered that Capt. Masingostates that he was on watch on the upper deck and in the pilot-house of the Sampson at, and for some time before, the moment of collision. The proper place for a lookout on auy vessel is that point from which he can best see objects and obstructions. The courts do not undertake to determine the proper place by any general ruling. A good place on the deck of one vessel may not be the proper place on another vessel of different conformation. The pilothouse deck of a steam-tug is the most elevated place on the tug; and the pilot-house itself,having windowsol). every side, is not an improper place for a lookout to enter occasionally in performing his observations. If he be a lookout in fact,giving his whole attention to that duty, and is not also acting as wheelsman, engineer, or in other exacting capacity at the same time, it is enough. The vessel is not in fault if he be ble and vigilant, though he be on the pilot-house deck or occasionally in the pilot-house itself. Capt. Masingo was on that deck, and I do not think the Sampson wall in fault as to her lookout. Let the damages sustained by the owner of the Kate Brady be ascertained by a commissioner, and I will sign a decree requiring their payment by,the owners of the Bendo.
THE JAMES 1VES.
445
THE JAMES
I Vll'S.'
THE NEWPORT. EASTON
e.
THE JAMES IVES AND THE NEWPORT.
(D1Btrlct Court, S. D. New York. December 16,l8OO.) CoLLIStON-'STEAMER AND BAIL VESSEL-PARALLEL CoURSES-CHA::qOE OF COURSE.
The tug N., with libelant's canal-boat on her port side, and projecting ahead of her, was on her way from Columbia stores, Brooklyn, to a point near Ellis island, in the harbor of New York. The schooner J. I. came down the East river in tow, was cast off opposite the Battery, and, with a fresh N. N. W. wind, shaped her course to go between Ellis and Bedloe's islands, starting from a position on the tug's· starboard hand, and some 300-400 feet distant, and moving parallel with, and a little faster than, the tug. Owing to her greater leeway also, she was continually drawing nearer. When about a third of a mile east of Bedloe's island, the schooner Buddenlyput up her helm, and attempted to cross the bow of the tow, but collided with the canal-boat. Her excuse was that she was obliged to so maneuver to clear a ship anchored between Ellis and Bedloe's islands. The weight of evidence was that there was no vessel so anchored as to embarrass the movements of either vessel. HeUl, that the schooner's change of course was unjustifiable, and was the cause of the collision.
In Admiralty. Suit to recover damages caused by collision. Hyland Zabriskie, for libelant. Robinson, Bright, Biddle &: Ward, for the Newport. Goodrich, Deady &: Goodrich, for the James I veSt
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BROWN, J. Towards evening on the 28th of May, 1890, as the libelCharles J. Rowe, while on the port side of the steam-tug ant's Newport; and projecting ahead of her, was being towed from the East river, bound for the scow permanently anchored as a landing place near Ellis island, she was run into by the schooner James rves, bound from the batter)' down the bay, and sustained damages, to recover which the above libel was filed. There is much conflict in the evidence as to the place of colJision, whether it was near Bedloe's island, or at least a quarter of a mile above it; whether an anchored ship was in the way, so as to compel the schooner to change her course; and also as to the relative position of the two vessels as they came out of the East river. The weight of probability, as well as of the direct evidence, is that the collif:ion was not so near Bedloe's island as most of the libelant's witnesses state, but much above Bedloe's island, and at least half way up to Ellis island, and probably at least a third of a mile eastward of a line joining the two. The tug was bound from Columbia stores, Brooklyn, for the scow above referred to, and had come along the northerly side of Gov.ernor's island. The schooner had been towed by a tug down the East iReported'byEd.ward G. Benedict, Esq., of the. New York bar.